Cce & St, Salem vs M/S. Sakthi Sugars Ltd

(Arising out of Order-in-Appeal No.13/2010 SLM dated 26.02.2010, passed by the Commissioner of Central Excise (Appeals), Salem).

CCE & ST, Salem : Appellant

Vs.

M/s. Sakthi Sugars Ltd., : Respondent

Appearance

Shri K.P. Muralidharan, AC (AR), For the applicant

Ms. Minchu, Adv., For the respondent

CORAM

Honble Shri R. PERIASAMI, Technical Member Honble Shri P.K. CHOUDHARY, Judicial Member

FINAL ORDER No. 40599 / 2015

Date of Hearing/Decision: 25.05.2015 Per: R. Periasami

Revenue filed appeal against the impugned order dated 26.02.2010. The short issue involved in this case is that the adjudicating authority in the OIO dated 23.07.2009, confirmed the order for recovery of Rs. 21,65,442/- as credit wrongly availed under Rule 14 of Cenvat Credit Rules and also demanded interest and imposed penalty of Rs. 2,000/-. The adjudicating authority has denied the credit availed by the respondent on the input services used in the co-generation plant, which in turn used for generation of electricity, which is exempted goods. He also denied the cenvat credit on various input services availed by the respondent on ineligible documents and also credit availed on construction of ancillary buildings, roads, drains, compound walls, Bachelors quarters, Officers quarters, fencing etc.

2. On appeal by the respondent the lower appellate authority in the impugned order remanded the case to the adjudicating authority by observing that the same adjudicating authority has in another OIO No. 13/2009 dated 02.06.2009 took a contrast view in respect of input service credit availed on co-generation plant. While remanding the case, he also directed the lower authority to re-examine in detail to pass clear findings on denial of cenvat credit on input services on various construction activities carried out by them.

3. Revenue in their grounds of appeal stated that the Commissioner (Appeals), the lower appellate authority should not have remanded the case and ought to have passed order on merits and also pleaded that he has not discussed the third issue in his order in respect of the credit availed on ineligible documents while remanding the case.

4. Heard both sides. Prima facie, the lower appellate authority has held that when the adjudicating authority took a different stand in the present appeal when compared to the earlier order passed by the same authority in respect of input services used in the co-generation plant. Revenue also has questioned the authority of authoritys power stating that he should not have remanded the case and also not discussed the third issue on denial of credit availed on ineligible documents.

5. On careful consideration of the records, I do not find any infirmity in the impugned order particularly when he noticed the same adjudicating authority took two different stand on a particular issue regarding input services used in co-generation plant in OIO No. 13/2009 dated 02.06.2009. While remanding the case, the appellate authority also clearly stated that the adjudicating authority failed to give due valid grounds for denying credit on other services related to construction activities. No doubt, appellate authority has not discussed the third issue in the impugned order. Therefore, taking into consideration of the overall facts and also taking into consideration that the case is already remanded to the adjudicating authority, there is no infirmity in the impugned order. However, it is directed that the adjudicating authority while deciding the denovo proceedings shall take into consideration of the input service credit denied on the ineligible documents and decide afresh. The adjudicating authority is directed to consider all the issues open in denovo adjudication. Accordingly, Revenue appeal is partly allowed to the extent above and the appeal is disposed in the above terms.

(Order dictated and pronounced in the open Court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

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